NJDEP Publishes New Climate Change Rule Proposal
August 7, 2024
Posted by Steven M. Dalton
Substantial changes to NJDEP’s use Coastal, Flood Hazard, Wetland and Stormwater regulatory programs are coming that will severely impact proposed and existing development. NJDEP published its Protecting Against Climate Threats (PACT) Resilient Environments and Landscapes (REAL) rule in the August 5, 2024 New Jersey Register and has up to a year to adopt the proposed amendments.
The proposal is extensive and will implement sweeping regulatory changes across various regulatory permitting programs, affecting new development and redevelopment, and substantial improvements to existing development. The proposal relies on several reports and studies commissioned or prepared by NJDEP, including the NJ Scientific Report on Climate Change (NJ Climate Science Report), the New Jersey Climate Change Alliance Science and Technical Advisory Panel (STAP) “Rising Seas and Changing Coastal Storms” report prepared by Rutgers University, and two rainfall studies in 2021, which predict a less than 17% chance that sea level rise (“SLR”) will exceed 5.1 feet by Year 2100, and that the State’s precipitation rates and intensity are expected to increase through the Year 2100. DEP is using this very conservative less than 17% chance as the basis for these proposed rules.
NJDEP will establish a regulatory Inundation Risk Zone (IRZ) largely in coastal areas along tidal waters that are predicted to be at risk of daily inundation or standing flood waters of up to 5.1 feet (by Year 2100). The extent of the IRZ is determined by adding 5 feet to the calculated mean higher high water (MHHW) line elevation. Projects in the IRZ involving new residential development, critical buildings and substantial improvements to existing structures will need to meet onerous enhanced risk assessment criteria including an alternatives analysis designed to avoid the risk (a/k/a discourage building). The rule will also establish a new Climate Adjusted Flood Elevation (CAFE) in tidal flood hazard areas, which represents a 5-foot addition to FEMA’s 100-year flood elevation based on NJDEP’s very conservative SLR predictions. Read more
NJDEP Issues Major Environmental Justice Decision Imposing Special Conditions
July 24, 2024
Posted by Matthew L. Capone
On Thursday, July 18, 2024, the New Jersey Department of Environmental Protection (“NJDEP”) issued an environmental justice approval to the Passaic Valley Sewerage Commission (“PVSC”) authorizing the construction and operation of an on-site emergency standby power generating facility (“SPGF”) (a natural gas-fired power plant) at the PVSC’s wastewater treatment plant in Newark, New Jersey. PVSC sought this approval in the aftermath of Superstorm Sandy where rolling power outages resulted in the release of roughly 840 million gallons of raw sewage from the PVSC facility into the Passaic River and Newark Bay. PVSC’s efforts since Superstorm Sandy have been devoted to developing a viable back-up power system which would prevent similar releases during future storms. However, the prospective addition of a gas-fired power plant to the PVSC facility has brought the application under the purview of New Jersey’s environmental justice rules and regulations where the benefit of such an installation must be weighed against its environmental impacts.
The approval is subject to a host of special conditions limiting the operations of the treatment plant and predicated upon avoiding and otherwise mitigating potentially adverse impacts to the overburdened community in which the treatment plant is sited. Read more
Appellate Division Vacates NJDEP Freshwater Wetlands GP#1 Issued to NJDOT
June 11, 2024
Posted by Michael J. Gross
Co-authored by Linda M. Lee
In a second go around in the Appellate Division for the same case, the Court vacated a Freshwater Wetlands General Permit #1 issued by the New Jersey Department of Environmental Protection (“NJDEP”) to the New Jersey Department of Transportation (“NJDOT”), which allowed for the rehabilitation and reconstruction of a Confined Disposal Facility (“CDF”) to be used for storing dredged materials from multiple waterways. In the Matter of Reauthorization of The Freshwater Wetlands General Permit #1 and Permit Modifications, A-2758-21 (App. Div. June 7, 2024). The Court found that NJDEP’s decision to issue the GP1 was legally erroneous and arbitrary under the plain meaning of the Freshwater Wetlands Protection Act (“FWPA”) Rules, N.J.A.C. 7:7A-1.1 et seq. Read more
NJDEP Proposes Bald Eagle Removal and Other Changes to New Jersey’s Threatened and Endangered Species Lists
June 6, 2024
Posted by Michael J. Gross
Co-authored by Steven M. Dalton and Matthew L. Capone
On June 3, 2024, the New Jersey Department of Environmental Protection announced a rule proposal which would update the endangered species and the nongame species lists promulgated by the Fish & Wildlife Endangered and Nongame Species Program (“ENSP”). These proposed updates would reflect, among other changes, the recategorization of the conservation status of certain species from the ENSP lists along with other structural and organizational amendments.
Primarily, the proposal celebrates the prospective reduced conservation status of three species, including the Peregrine Falcon, Bobcat, and Cope’s Gray Treefrog which each will have their conservation status reduced from “Endangered” to “Threatened.” Read more
Appellate Division Provides Insight Into Rights Inherent to Tidelands Grants and Tidelands Licenses
May 20, 2024
Posted by Michael J. Gross
Co-authored by Matthew L. Capone
A new unpublished case decided by the Appellate Division provides insight into how courts view those rights granted to the holder of tidelands grant versus those afforded by a tideland’s license. In the Matter of P.T. Jibsail Family Ltd. P’ship Tideland License involved the appeal of the issuance and modification to a tidelands license affecting properties owned by appellant Janine Morris Trust (“JMT”) and respondent P.T. Jibsail Family Limited Partnership (“Jibsail”) situated along Barnegat Bay. JMT argued that the approval of the modified tidelands license to Jibsail – allowing for the construction of a 300-foot-long dog-legged dock protruding into Barnegat Bay – was arbitrary, capricious, and/or unreasonable because the dock hampered JMT’s access to navigable waters.
In analyzing JMT’s argument the Appellate Division reviewed the fundamental differences between tidelands grants and tidelands licenses, including: (1) that a tidelands grant “is [a] conveyance in fee simple of real property,” Panetta v. Equity One, Inc., 190 N.J. 307, 309 (2007), while a tidelands license allows the licensee only “to rent an area of land . . . depicted on the [associated] plan”; and (2) that a tidelands grant generally extends the full width of the ripa or the width of the adjacent upland parcel whereas a tidelands license grants to the licensee the right to use only the area of tidelands circumscribed by a “license box” or an outline that closely approximates the size of the permitted structure and generally only includes water areas, not uplands. Ibid. Read more
NJDEP Adopts More Stringent Residential Soil Remediation Standards for Lead
May 7, 2024
Posted by Steven M. Dalton
Co-authored by Matthew L. Capone
The New Jersey Department of Environmental Protection (“NJDEP”) has updated the soil remediation standard for the ingestion-dermal exposure pathway for lead to bring the standard in line with the United States Environmental Protection Agency’s (“USEPA”) Integrated Environmental Uptake Biokinetic Model for Lead in Children (“IEUBK”). In effect, this change reduces by half the acceptable levels of lead contamination for soil in residential sites from the previous standard of 400 mg/kg to the new standard, 200 mg/kg.
This change was prompted by USEPA’s release of an updated IEUBK model in May of 2021 which recommended a new residential soil standard for lead of 200 mg/kg. New Jersey’s administrative code at N.J.A.C. 7:26D-7.2(a)4 requires NJDEP update its standards following revisions and changes to the IEUBK model. Read more
Remediation Programs Update from NJDEP
November 9, 2023
Posted by David J. Miller
Co-Authored by Matthew L. Capone
This fall, the New Jersey Department of Environmental Protection (“NJDEP”) announced the relaunch of two impactful resources for site remediation, the Brownfield Development Area (“BDA”) Program and the Technical Review Panel (“TRP”).
The BDA Program allows selected communities which are affected by multiple brownfield sites to work with Contaminated Site Remediation & Redevelopment (“CSRR”) to design and implement remediation and reuse plans for the affected properties simultaneously. Participation in the BDA Program is voluntary and does not affect the application of New Jersey’s other remediation laws, policies, and guidance on properties within a BDA, but does offer incentives to eligible municipalities and redevelopment authorities, including up to $5 million in grants through the Hazardous Discharge Site Remediation Fund. Read more
The Uniform Public Expression Protection Act: New Jersey’s Recently Enacted Anti-SLAPP Legislation
September 15, 2023
Posted by Afiyfa H. Ellington
On September 7, 2023, New Jersey enacted the Uniform Public Expression Protection Act (“UPEPA”), which provides for an expedited procedural dismissal process against a party who has filed a Strategic Lawsuit against Public Participation (“SLAPP”), a lawsuit brought on by individuals and companies seeking to stop critics from making public statements against them.
The UPEPA applies to an individual or company who files a cause of action in a civil action lawsuit against another individual or company based on the person’s communications on an issue under consideration or review by any branch of government. The UPEPA also protects the exercise of freedom of speech rights contained in the constitutions of the United States and the State of New Jersey. Read more
BRICK AND STAFFORD CAFRA IMPERVIOUS AND VEGETATIVE COVER CHANGES
July 21, 2023
Posted by Michael P. Castore
On July 3, 2023, DEP issued notices of adoption accepting new and changed State Plan Policy Map Planning Area (“PA”) and Community Development (“CD”) boundaries, approved by the State Planning Commission as the boundaries for Coastal PAs and CAFRA Centers and Nodes, for Brick Township and Stafford Township. The map amendments being implemented by DEP include the entirety of both municipalities, and the changed Coastal PA boundaries will be incorporated into N.J.A.C. 7:7-13 for the purposes of applying impervious and vegetative cover requirements under CAFRA, some of which are described below. Read more
First Of Its Kind With More To Follow: NJDEP Settlement Proposal Addresses PFAS Contamination
July 11, 2023
Posted by Marc D. Policastro
Co-Authored by Matthew L. Capone
On June 28, 2023, the New Jersey Department of Environmental Protection (“NJDEP”) reached a proposed settlement with Solvay Specialty Polymers USA, LLC (“Solvay”) over Solvay’s discharging of per- and polyfluoroalkyl substances (“PFAS”) and other contaminants into public drinking water during Solvay’s thirty-year operation of a 243-acre chemical manufacturing plant in West Deptford, New Jersey. Solvay, which was subject to a Statewide Directive regarding PFAS contamination of regional potable groundwater sources by NJDEP in March 2019, could not reach a resolution with the Department on testing and remediation of the Site – resulting in NJDEP filing a lawsuit against the manufacturer in November 2020. Read more
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